Kuppuswami Chettiar v. Lakshmi — 1987 DIGILAW 424 (MAD)

ORDER K.M. Natarajan, J. 1. These revisions arise out of the common order passed by the Appellate Authority (VII Small Causes Court, Madras) confirming the order of eviction passed by the Rent Controller and also stopping further proceedings and consequently ordering eviction by granting three months time in all these cases. 2. The facts which are necessary for the disposal of these revision-petitions are briefly as follows:-These revision-petitioners became tenants of different portions of the premises bearing door No. 49, Perumal Mudali Street, Kondithope, Madras, under one K. Bangaru Chettiar. The said K. Bangaru Chettiar died on 27-10-1981. Thereafter, Rajammal styling hereself as the widow of Bangaru Chettiar was collecting rents from the tenants. She died on 9-10-1984. Even during her lifetime, the respondent herein, namely, Lakshmi filed a suit informa pauperis for recovery of possession in O.P. No. 4288 of 1984 and during the pendency of the suit, Rajammal died on 9-10-1984. Thereafter the respondent herein issued notice to the tenants calling upon them to pay rent to her. The notice is dated 10-10-1984. The respondent was appointed as receiver on 19-3-1986 in Application No. 2772 of 1985 by the High Court of Judicature at Madras. The tenants were added as parties in that application was in a suit filed by one Saraswathi Ammal alias Sarasammal Claiming herself as the third-wife of the deceased Bangaru Chettiar. By virtue of the order of appointment, the respondent is entitled to institute proceedings against the petitioners herein under the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) for recovery of rent and for eviction. She has also filed petitioner in R.CO.P.No. 617 to 828 of 1985 on the file of the IX Small Causes Court, Madras, against the petitioner herein on the ground of wilful default in payment of rent from 1-10-1984 to 31-12-1985 and on the ground of wilful denial of title. In the counter, it is stated by the petitioners herein that they have no objection to deposit the rent or pay to the receiver as and when appointed by the High Court of Madras. But, after the appointment of the respondent as receiver, they did not pay the rent. The respondent filed a petition under Section 11(4) of the Act to stop further proceedings and order eviction, on the ground that they have not paid the arrears of rent. But, after the appointment of the respondent as receiver, they did not pay the rent. The respondent filed a petition under Section 11(4) of the Act to stop further proceedings and order eviction, on the ground that they have not paid the arrears of rent. Even though they are willing to deposit the rent into court, they had not deposited the rent. The Rent Controller by his order dated 10-3-1986 directed the tenants, who are the petitioners herein, to deposit the rent into court on or before 24-3-1986, failing which, it was made clear, that all further proceedings will be stopped and eviction ordered. In spite of the order, they did not choose to deposit the rent. Hence, on 25-3-1986, since they failed to comply with the conditional order passed by the Rent Controller, eviction was ordered. Aggrieved by the same, they preferred appeals before the Appellate Authority in R.C.A. Nos. 446,478 to 484 and 503 of 1986. The respondent also filed applications under Section 11(4) of the Act on 2-7-1986 alleging that they have not deposited the arrears of rent and that they are not entitled to prosecute the appeals. She contended that the appeals have to be dismissed and eviction is to be ordered. In the said applications, the Appellate Authority came to the conclusion that in view of the order of appointment of the respondent as receiver, it is not open to the. petitioners to deny her title and they are bound to pay the arrears of rent. Further, even accepting the payment of rent by them to one Annakili, the payments from 1-10-1984 to 1-2-1986 can be decided in the main R.C.O.Ps. after full fledged enquiry. But, from the date of appointment of the respondent as receiver, there is nothing to show that the petitioners have made any payment of amount, and on the other hand from the very allegation in the revision petitions, they are liable to pay rent from 1-3-1986 to 31-12-1986. As regards the rate of rent, it is not disputed. The Rent Controller has mentioned about the rate and at the said rate each of the petitioners were directed to pay the arrears for the above period within 23-2-1987. The said order was passed on 20-1-1987. The petitions were directed to be called on 24-2-1987. As regards the rate of rent, it is not disputed. The Rent Controller has mentioned about the rate and at the said rate each of the petitioners were directed to pay the arrears for the above period within 23-2-1987. The said order was passed on 20-1-1987. The petitions were directed to be called on 24-2-1987. The petitioner have filed petitions for extension of time on 23-2-1987 and they deposited only l/4th of the amount. They did not choose to pay the arrears as directed by the Appellate Authority and hence the further proceedings were stopped and eviction was ordered under Section 11(4) of the Act granting three months time for vacating the premises, on 2-4-1987. Aggrieved by the same, these revisions are filed. 3. Learned Counsel for the revision-petitioners, Mr. Subramania Iyer, submitted that after the death of Rajammal, one Annakili calling herself as the sister of Bangaru Chettiar filed an application and she was appointed as receiver in testamentary application filed by her and the revision-petitioners paid rent to her upto the end of January 1986. Further, there are other claimants also. In the circumstances, the revision-petitioners were unable to pay the rent as they were doubtful as to the real owner. Further, the respondent herein, who poses herself to be the daughter of Bangaru Chettiar, is neither the natural nor adopted nor foster daughter, that she is a mere interloper, that she has no title to make any claim and that her petitions for eviction ought to have been dismissed. The petitions under Section 11(4) of the Act cannot be used as a lever to collect rent. The learned Counsel also submitted that the order passed under Section 11(4) of the Act by the appellate authority is contrary to the provisions of the Act, that in any event the revision petitioners have not been given an opportunity to explain the reasons for not paying the rent as directed by court and that the order is liable to be set aside. Further, during the pendency of the revisions, the arrears as directed by the appellate authority has been paid and as such they should be given; an opportunity to contest the main petitions. 4. On the other hand, the learned Counsel for the respondent submitted that the mere denial of right will not prevent the landlady from filing the petitions. Further, during the pendency of the revisions, the arrears as directed by the appellate authority has been paid and as such they should be given; an opportunity to contest the main petitions. 4. On the other hand, the learned Counsel for the respondent submitted that the mere denial of right will not prevent the landlady from filing the petitions. The learned Counsel drew my attention to the proceedings under which the respondent was appointed as receiver, in Application No. 2772 of 1985 on 19-3-1986, wherein these petitioners were parties. As per the said orders, the respondent was appointed as receiver to collect rents of the properties from the tenants regularly and deposit the same into court to the credit of the application once in three months. The tenants who are parties to the same cannot plead ignorance of the same. According to the respondent, the tenants set up one Annakili to file a petition for letters of Administration in O.P.No. 9 of 1986 on the file of the High Court, Madras, as if she is the sister of the said Bangaru Chettiar. She also filed an Application No. 966 of 1986 for permitting her to collect rents from the tenants without disclosing the appointment of the respondent already on 19-3-1986 in Application No. 2772 of 1985. The said petition was ordered. The respondent herein filed a petition to suspend the said order and set aside the same. Accordingly the said order was suspended on 28-4-1986 and finally the Application No. 966 of 1986 filed by Annakili was dismissed and her appointment as receiver was set aside, on the ground that the respondent herein was appointed as receiver already by this Court in an earlier application. Hence, the said order appointing her as receiver is in force and a Division Bench of this Court consisting of V. Ramaswami, J. (as he then was) and Bellie, J., upheld the order appointing the respondent as receiver for collection of rent and to take proceedings for eviction of execution of any decree, in C.M.P. No. 8184 of 1987 in O.S A. No. 70 of 1987 on 2-7-1987. Hence, it is too much for the tenants to contend still that the respondent has no locus stanai to file the petitions and ask for eviction, on the grounds of wilful denial of title and wilful default in payment of rent. Hence, it is too much for the tenants to contend still that the respondent has no locus stanai to file the petitions and ask for eviction, on the grounds of wilful denial of title and wilful default in payment of rent. The learned Counsel submitted that for filing an eviction petition, the petitioner need not be a owner of the property in the sense of having exclusive title to him and it would suffice if he is entitled to receive the rent from the tenant in occupation. In support of his contention, he drew my attention to the decision of this Court in Devadoss v. Velu. That was also a case wherein an application was filed under Section 11(4) of the Act and the landlord's title was denied, it was held; For purposes of the Act, it is not necessary that the landlord should be the owner of the property in the sense of having-exclusive title to it. It would suffice for the purpose of the Act if a person was entitled to receive the rent from the tenant in occupation. At this juncture, it is relevant to note the definition of 'landlord' in Section 2(6) of the Act and it reads; Landlord includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executer administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. 5. Therefore, it is clear from the definition itself that a receiver himself is a landlord and he is entitled to receive rent and he is entitled to maintain the application. 5. Therefore, it is clear from the definition itself that a receiver himself is a landlord and he is entitled to receive rent and he is entitled to maintain the application. Next, it was submitted by the learned Counsel for the respondent that a simple denial of title of the landlord by the tenant cannot take away the jurisdiction of the statutory authorities to invoke Section 11 and relied on the decision of Sathiaev, J., in Rathinammal v. Ayyavu wherein it was held; On a proper construction of the Section 11 of the Act, and in the face of what has been held by the Supreme Court in similar circumstances under a different enactment, the jurisdiction of the Statutory Authorities, to exercise powers under Section 11 of the Act cannot be off-set on the simple denial of the relationship of landlord and tenant made by the other side. 6. On the other hand, the learned Counsel for the revision-petitioner relying on the decision in R. Radha v. C.R. Govindarajulu submitted that in para 21 of the said judgment it has been considered that only if the main petition for eviction was filed on tenable grounds under Section 10 of the Act, the application under Section 11(4) of the Act can be maintained; otherwise, in all the cases the landlord to whom the tenant has not paid rent would file a petition under Section 10 of the Act whether he has got a good ground or not to obtain an order of eviction against the tenant under the provisions of the Act and thereafter file a petition under Section 11(4) of the Act without resorting to the filing of a suit for recovery of the same. The said decision is not applicable to the facts of this case. In this case, it is clear that the revision-petitioners, in spite of the order appointing the respondent as receiver, are disputing her right to receive rent, in spite of notice and demand and in spite of the direction given by the Rent Controller and once again by the appellate authority, they did not choose to pay rent. There are enough circumstances to hold that there is wilful default in payment of rent besides the wilful denial of title. There are enough circumstances to hold that there is wilful default in payment of rent besides the wilful denial of title. Even before this Court it is contended that the respondent is not entitled to receive rent in spite of the order of this Court appointing her as receiver as already stated above. 7. The learned Counsel for the respondent submitted that the present revision-petitions filed by the petitioners without depositing the rent are not maintainable. Further, they have not filed any appeal against the order passed by the appellate authority on 20-1-1987 directing the revision-petitioners to pay the arrears of rent for the period commencing from 1-3-1986 to 31-12-1986 at the rate already agreed and fixed by the Rent Controller and also mentioned by the appellate authority in his order. The learned Counsel for the respondent drew my attention to a decision of this Court reported Iqbal and Co. v. Abdul Rahim 95 L.W. 245 wherein Mohan, J. held: After the passing of an order under Section 11(4) of T.N. Act 18 of 1960 the tenant filed a petition along with an affidavit stating that since he was taking effective steps to prefer an appeal against the order under Section 11(4), time to deposit may be extended by two weeks since certified copy had not been furnished to him. It was dismissed and an order of eviction was passed in the main petition. Two appeals (H.R. As.) were preferred (1) against the order under Section 11 (4), and the eviction order consequent thereon, and (2) against the order seeking extension of time. During the pendency of the appeals, the amount directed to be deposited was deposited. Notwithstanding the same, the appeals came to be dismissed. The two C.R.Ps. arose out of the two appellate orders. Held, it is unlike the general cases, that under the Rent Control Act, deposit of the amount is ordered under Section 11(1) of the Act as a sine qua non for the entertainment of the appeal. Therefore, mere willingness or readiness would not suffice. Nor again, can it be said that the subsequent deposits made during the pendency of the appeal would have the effect of militating against the order of eviction. Section 11 of T.N. Act 18 of 1960 speaks of the payment or deposit of rent during the pendency of the proceedings for eviction. Therefore, mere willingness or readiness would not suffice. Nor again, can it be said that the subsequent deposits made during the pendency of the appeal would have the effect of militating against the order of eviction. Section 11 of T.N. Act 18 of 1960 speaks of the payment or deposit of rent during the pendency of the proceedings for eviction. Sub-Section (1) of Section 11 of the Act states that unless all the arrears of rent due in respect of the building upto the date of payment or deposit is made, it would not be open to the tenant to contest an application for eviction. This is before the original authority, likewise, before the appeal-late authority also, such a payment has to be made. Sub-section (2) requires the deposit of rent to be made within the time and the manner prescribed. In the instant case, time had been specified and the manure of payment had also been prescribed. If really the tenant was serious about his appeal he should have deposited the arrears within the due date. The filing of the appeal was the only ground that was raised and even in such a case, deposit was essential. That being the correct position, the mere averment in the very same affidavit that the tenant was ready and willing to deposit the entire amount into court less the admitted arrears already paid, would not in any way be helpful to him. He should have deposited the amount and then only could be have avoided the eviction since the only ground that was stated was the filing of the appeal. Therefore, the order under Section 11(4) has come into being and has worked itself out. Therefore, the appeals themselves could not have been entertained unless and until the amount was deposited. Admittedly, at the time of preferring the appeal, the arrears had not been paid or deposited in terms of Section 11(1) of the Act, hence, the appeals themselves should not have been entertained, apart from the fact that the order passed on 22nd August, 1980 which worked out itself, should not be entertained by the appellate authority. When the appeals themselves were incompetent, now the question becomes academic whether there was justification in refusing to deposit the amount. When the appeals themselves were incompetent, now the question becomes academic whether there was justification in refusing to deposit the amount. This is because purely of the statutory provisions and one cannot import the general considerations of justice or equity in a case of this character. The ratio laid down in the said decision is in all fours applicable to the facts of the present case. Even before the appellate authority, they have not deposited the rent as directed the Rent Controller at the time of filing of the appeals. More so, when the appellate authority also gave them an opportunity in the application filed before him under Section 11(4) of the Act by passing a conditional order and fixing time for payment, they did not do so and the said order has not been challenged. Even after the final order was passed directing them to vacate the premises by three months, they did not deposit the arrears even before the filing of the revision petitions. It is only during the pendency of the revisions, with great difficulty, after so many adjournments were given it was reported that the arrears have been paid. The subsequent deposit would not cure the original non-compliance as well held in the above case. It is also brought to my notice by the learned Counsel for the revision-petitioner that the conditional order directing them to pay rent or else the proceedings would be stopped, is itself the final order and it is appealable and not having chosen to resist the same, the appeal and revision filed against the consequential order are of no consequence. In this connection, the learned Counsel drew my attention to the decision of this Court in Balarama Reddi v. Subbarama Reddi (1953) 1 M.L.J. 40 wherein Mach, J. relying on the earlier Bench decision reported in Ramayya v. Lakshmayya (1944) 1 M.L.J. 381 held as follows: An order setting aside on exparte decree on condition that a certain sum was to be paid by a certain date and in default application was to be dismissed, is the only appealable order, if the applicant is aggrieved by it is any way or finds it impossible to comply with the conditions as inequitable or onerous, in which case he should appeal against it within the prescribed period from the date of such order. If the Court does pass a further discretionary order varying on his application the conditions of the original order or extending time for performance which will form a fresh basis for a rejection of the application, it would be open to an applicant to file an appeal against such an order. It is clearly not open to an applicant after such a conditional order is passed against him to do nothing at all by way of compliance or even by moving the Court before the date fixed for compliance to extent the time and then to claim a right of appeal from the date on which the dismissal of his application for default is recorded. Limitation for appeal runs from the date of the conditional order itself and not from the date of formal dismissal for non-compliance with the conditions. In Ramayya v. Lakshmayya (1944) 1 M.L.J. 381 it was held: Held, that the first order was the only order in the case and was appealable. That order was all comprehensive. The second order was nothing more than the recording of the legal position, which had arisen from the non-fulfilment of a condition precedent by the petitioners. It was not further order because no further order was required in the case. There was no such thing in this case as a conditional order and a final order. There was only one order which was the final order. 8. Admittedly, the revision-petitioners have not challenged the conditional order directing them to pay within any such period in these revisions or even before the appellate authority. Hence, the fact remains that the petitioners have not complied with the direction in the conditional order passed by the appellate authority and the same has worked itself out and the present revisions, without depositing the said amount, are not maintainable in view of the ratio laid down in the above decisions. Even on facts it is submitted by the learned Counsel for the respondents that on their own admission, the revision-petitioners are liable to pay rent fixed by the Appellate Authority and that there is no justification for them not complying with the conditional order before the appellate authority. Even on facts it is submitted by the learned Counsel for the respondents that on their own admission, the revision-petitioners are liable to pay rent fixed by the Appellate Authority and that there is no justification for them not complying with the conditional order before the appellate authority. The authorities below have concurrently found that in spite of the time granted for paying the amount by conditional order, the revision petitioners have not complied with the said order and paid the rent and as such no interference is called for. The' learned Counsel for the revision-petitioners drew my attention to the decision rendered by me in M. Vijayarajan v. B. Krishnaveni Ammal and 2 Ors. 1985 T.L.N.J. 260, a case under Section 11(3) of the Act. The said decision is not applicable to the facts of this case. In the above quoted case, there is no speaking order passed by the court below and the objection of the respondent was not considered. In the circumstances, the matter was remitted back to the Rent Controller for the purpose of disposal on merits according to law. The ratio laid down in the said decision is not applicable here, in the present case, opportunity was given and after considering the contentions of the respective parties, a comprehensive order has been passed. The learned Counsel for the respondent drew my attention to the decision in R. Radha v. C.R. Govindarajulu wherein a Division Bench of this Court consisting of Ismail (as he then was) and Nainar Sundaram, JJ., held: Where the findings of the authorities under the Act are concurrent both on the question whether the tenant had committed, wilful default in the payment on rent or not and on the question whether the landlady required the premises for her own use and occupation or not and there is evidence to support these findings, the High Court will not interfere in revision. 9. The learned Counsel also invited the decision reported in Sri Raja Lakshmi Dyeing Works v. Rangaswamy wherein it was held: A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not a finding which can be touched by the High Court exercising jurisdiction under Section 25. 9. The learned Counsel also invited the decision reported in Sri Raja Lakshmi Dyeing Works v. Rangaswamy wherein it was held: A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not a finding which can be touched by the High Court exercising jurisdiction under Section 25. In such case, merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. On fact it has to be noticed that under Section 25 of the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the Subordinate authority. Applying the ratio in the said decisions to the facts of this case, I find much force in the contention on the learned Counsel for the respondent, as in the instant case it has been concurrently found by both the courts, on the admitted facts and available evidence, that the respondent, who was appointed as receiver by this Court, is entitled to receive rent and in spite of the fact that the revision-petitioners were parties to the said proceedings, they wilfully defined the title of the respondent and also withheld payment of rent and in spite of the conditional direction given by the Court below, they failed to deposit the rent and as such there is no other alternative except to invoke the jurisdiction under Section 11(4) of the Act and to stop further proceedings and order eviction. On going through the entire materials placed before me, I am of the view that the order passed by the Court below does not suffer from any infirmity or illegality whatsoever so as to interfere with the same in these revisions. Consequently the revisions fail and stand dismissed. However, in the circumstances of the case, there will be no order as to costs.